Dispatches from the Creation Wars

The ACLU has convinced a federal judge that monitoring overseas communications of terrorists is against the constitution.

Bzzzt. Thank you for playing, but no. No one - absolutely no one - claims that monitoring overseas communications of terrorists is against the Constitution, and absolutely nothing in yesterday's ruling says anything of the sort. In fact, no one even claims that a warrant is required when monitoring overseas communications among foreign nationals. The issue here is whether they can monitor and record conversations between foreign nationals and American citizens in the United States without a warrant. Yes, that last part is just a tiny bit important.

Despite the fact the preamble lists defending the nation as an acceptable federal government function, the ACLU and US District Judge Anna Diggs Taylor said that the risk "innocent" communications could be intercepted far outweighed the risk of Al Qaeda attacking the United States.

Bzzt, thank you yet again. We have some lovely parting gifts for you. This is an abysmally stupid argument. Of course the preamble to the Constitution says defending the nation is a legitimate Federal function; no one doubts that. But the text of the Constitution also prescribes how they can do so and within what limits, and one of those limitations is that if they're going to engage in a search of an American citizen (and a wiretap is a search), they have to get a warrant by showing probable cause.

And of course, Taylor's ruling did not say that the risk of innocent communications being intercepted outweighed the risk of a terrorist attack. In fact, the ruling didn't even address that issue at all. The judge is not in a position to weigh such risks, nor did she try. Her job is solely to decide whether the action meets constitutional muster. Under our system, if an action is unconstitutional then it's forbidden, regardless of someone's cost/benefit analysis of it. There is no such analysis in Taylor's ruling at all.

Bambenek either seriously lacks reading comprehension skills, or he is just making this up out of thin air. And he seems to specialize in making thoroughly illogical arguments:

Despite the evidence, the media still calls the case a matter of "warrantless wiretapping" despite the fact that the clear intention is to monitor international calls....The judge in this case, an appointee of Jimmy Carter, doesn't seem to understand the difference between overseas surveillance and domestic surveillance. Will the CIA start needing warrant the next time the spy on a terrorist overseas?

John, John, John. Seriously, it's time for a class in remedial reading. This case is not about monitoring overseas phone calls; it's about monitoring calls between American citizens and people overseas. Read my lips: no one - absolutely no one - says that the government has to get a warrant in order to monitor conversations that take place overseas. The NSA monitors such calls all the time and neither this case nor any other case has ever challenged that authority. Even now that the judge has struck down the TSP program, that has no effect whatsoever on the NSA's monitoring of communications overseas. The constitutional question involves only monitoring of conversations between Americans in the US and people overseas. The only one here who doesn't seem to understand the difference is you.

The response from much of the rest of the right wing blogs is also pretty predictable. Glenn Greenwald gives a rundown of many of those responses, including:

1. She's a Carter nominee.
2. She's a black woman.
3. She's a liberal.

And of course:

4. She hates America.
5. She loves terrorists.

Why bother with a substantive response when you can just attack the individual? That takes effort. And thinking. And that makes my head hurt.